Ostrowski Confident About Court Challenge To Pistol Permit Law

Peretz Partensky / CC BY-SA 2.0

NEW YORK – Attorney James Ostrowski, who argued before the U.S. Court of Appeals his challenge to the state’s pistol permit laws, told WNYNewsNow in an exclusive interview just hours after his court argument Wednesday, that he is confident the court will accept his arguments, but cautions that one never really knows until the decision is announced.

Ostrowski interviewed via Skype. 02/20/19

“I thought it went well. You can never really tell. They asked tough questions of both sides, they were interested,” he said. “They showed a detailed knowledge of the issues and brought up the fact the Supreme Court is now reviewing the Second Circuit’s gun jurisprudence. They thought that was very significant and we thought that was significant because there may be a shake up in the whole way the court approaches gun cases from now on.”

Agreeing that this case could be a landmark moment in law, he said one of the judges even made that statement.

“I really think Judge Walker, who brought that up, kind of broke some news today because I think the Supreme Court wouldn’t have taken the case unless it was going to change the law. You can’t know that for sure but that’s how we judge those things,”Ostrowski said.

He said the court should apply a strict approach to the Constitution and not the lenient approach normally used.

“They’ve been using sort of a lenient standard to judge gun laws, which we think sort of automatically predetermines that they’re going to be approved and we strongly urge them to reject that standard and the Supreme Court may do that for them,” he said.

One of the major problems with the state’s pistol permit is it doesn’t seem to recognize gun ownership as a right and the state’s courts have been ignoring the Constitution, Ostrowski said.

“In New York, a pistol permit is a privilege, under the Second Amendment the right to bear arms is a right so there is a sharp conflict. New York courts have been sort of ignoring the Second Amendment and so now it’s crunch time where they’re going to be called into account because the Supreme Court has taken the first New York gun case ever so, with the anticipation that it’s a five to four right to bear arms majority, they’re going to change the law,” he said.

Just when the court will rule is hard to predict, Ostrowski said.

“They could rule in a week or they could rule in six months or they could wait for the Supreme Court, which could be quite a while, so we really don’t know. I don’t think it’s going to be soon, if it’s soon it might be bad news for us,” he explained.

The courts are only one way to protect the Constitution, Ostrowski said.

“We’re very intent on making the courts state what they view on limits and the boundaries of the Second Amendment because if the courts don’t enforce the Second Amendment, it has to be enforced in other Democratic procedures, because we’re not going to say ‘You’re going to take away our Second Amendment rights and that’s fine.’ There’s various legal and political, peaceful legal remedies, free speech and education, direct action strategies, juries have a role to play.”

He explained that those who use the militia clause of the Amendment to oppose individual gun ownership are wrong.

“That never was a very good argument. The primary clause there is the right of the people to bear arms and that argument has already been decided.”

Education is key to getting people to understand the Second Amendment, Ostrowski said.

“The people have been bamboozled about the Second Amendment. They’ve never really been informed about what it’s all about. They think the Second Amendment is some kind of dead letter thing having to do with muskets and colonial times,” Ostrowski said.

“It’s as fresh as the new fallen snow, it’s quite relevant and it’s timeless and the Second Amendment works.”

“The Second Amendment has two purposes. One is to allow the citizenry to protect itself from the government when it gets out of control and, two, to allow the citizenry to protect themselves when the government isn’t around, which is about 99 percent and it doesn’t have virtually anything with hunting,” he said.

He said what happens when someone can’t defend themselves is that “a crime historian will show up and draw a chalk line around your body and your relatives can prepare for your funeral.”


  1. It’s about time that NYS’s unconstitutional Safe Act gun law is put to the test! I believe the courts will rule for the people and the second amendment!

  2. It is also a violation of Supreme Court precedent, specifically Murdock v Pennsylvania (Murdock v. Pennsylvania, 319 U.S. 105 (1943), (a state may not convert a Constitutional right into a privilege and force citizens to pay a tax in order to enjoy the exercise of that right, and it may not use such tactics to repress freedom of expression even when the point of view being expressed is”… unpopular, annoying, or distasteful…”) and Shuttlesworth v. City of Birmingham, 394 U.S. 147 (1969),. which states that, “A law subjecting the right of free expression in publicly owned places to the prior restraint of a license, without narrow, objective, and definite standards is unconstitutional, and a person faced with such a law may ignore it and exercise his First Amendment rights.”

    Firearms carry is as much about our First Amendment right of freedom of expression as it is our Second Amendment right to keep and bear arms. It is time for attorneys to begin approaching it that way.

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